Notre Dame Journal of Law, Ethics & Public Policy Volume 5 Article 4 Issue 2 Symposium on Serious Juvenile Crime 1-1-2012 Sins of Their hiC ldren: Parental Responsibility for Juvenile Delinquency Gilbert Geis Arnold Binder Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp Recommended Citation Gilbert Geis & Arnold Binder, Sins of Their Children: Parental Responsibility for Juvenile Delinquency, 5 Notre Dame J.L. Ethics & Pub. Pol'y 303 (1991). Available at: http://scholarship.law.nd.edu/ndjlepp/vol5/iss2/4 This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. SINS OF THEIR CHILDREN: PARENTAL RESPONSIBILITY FOR JUVENILE DELINQUENCY GILBERT GEIS* ARNOLD BINDER" It was not by mere chance that the United States near the turn of the last century became the first country in the world to establish a separate court for the handling of behaviors that came to be called juvenile delinquency.' Americans always have been beguiled and bewildered by youth. Europeans dur- ing the Second World War often commented on what they regarded as an extraordinary concern and indulgence by Amer- ican soldiers for youngsters in battle zones and occupied areas. The first juvenile court, established in Illinois in 1899,2 reflected a deeply-held American belief in the malleability of young persons and their potentiality for reformation and recla- mation.- Ultimately, the juvenile court movement would sweep the world, but its ethos remains a reflection of American ideals. "A democratic society," the United States Supreme Court has said, reflecting these ideals, "rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies." 4 Difficulty typically arises, however, when benign goodwill fails to produce the kind of appreciative and positive response that it is designed to elicit. It is one thing to have youngsters who are of no particular concern misbehave; another to have young people in whom you have invested so much emotion, and for whom you believe you have done so much, to remain * Professor Emeritus, Program in Social Ecology, University of California, Irvine. OS Professor, Program in Social Ecology, University of California, Irvine. 1. See generally Roberts, The Emergence of the Juvenile Court and Probation Serices, in JUVENILE JUSTICE: POLICIES, PROGRAMS, AND SERVICES 56-60 [hereinafter JUVENILE JUSTICE]. 2. Illinois Juvenile Court Act, 1899 Il.Laws 131-37. 3. See generally A. PLArr, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 46-74 (1969). 4. Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (holding that children under 12 may be forbidden to sell papers or merchandise on the street). 304 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY (Vol. 5 intransigently bad. It makes you frustrated and angry.' A prominent sociologist has summarized the situation by noting that it seems clear that there is in American culture a strik- ingly high evaluation of "youth" as a time of life. Yet in this same culture, adolescence tends to be a period of rel- atively great stress and strain, and the "problems of youth" are the 6 objects of widespread discussion and concern. Another well-known scholar stated the second part of the pre- vious comment more tersely: the United States, he believes, presents "one of the extremest7 examples of endemic filial fric- tion in human history." Frustration and anger are the twin reflexes that underlie the recent proliferation of attempts to control delinquency by use of the law to foster civil and criminal responsibility on par- ents and guardians for the misdeeds of their children. These actions are vulnerable to criticism on ethical grounds, particu- larly because they punish one person who does not (and per- haps cannot) control another for deeds done by that other person. In addition, the laws are heir to the standard criticism of general deterrence, that it is unacceptable to punish one per- son in order to teach another a lesson: indeed, it has been argued that unless punishment is "graded according to serious- ness of inclination to misconduct rather than the gravity of the misconduct itself,"8 deterrence is not a logical or ethical ration- ale for dealing with law-breakers. Finally, and perhaps most important, there is no evidence that the laws punishing parents inhibit the delinquency of their children; nor does reflective common sense or the theory dominating the study of delin- quency offer support for the idea that they can do so. It is not unlikely, in fact, that the laws contribute, at least in some cases, to a deterioration of the parent-child relationship and, because of this, to an increase in delinquent behavior. 5. Note the following plaint against parents: "We find that an element of oversight, carelessness, disinterest, or ineptitude in the discharge of parental duties appears in almost every case." Smyth, The Juvenile Court and Delinquent Parents, in THE PROBLEM OF DELINQUENCY 970-1 (S. Glueck ed. 1959). Cf Hoover, Punish the Parent?, 89 THE ROTARIAN 24 (Oct. 1956). 6. R. WILLIAMS, JR., AMERICAN SOCIETY: A SOCIOLOGICAL INTERPREalrAON 77-78 (1964). 7. Davis, The Sociology of Parent-Youth Conflict, 5 AM. Soc. REV. 523, 523 (1940). 8. A. GIDDENS, DURKHEIM 75 (1978). 1991] SINS OF THEIR CHILDREN A particularly notorious use of the concept of parental responsibility arising from motives of frustration and malignity can be found in the announcement late in 1989 by the Israeli army that it would impound property or seal homes belonging to the parents of Palestinian children who threw rocks at Israeli soldiers in occupied territories. This policy was inaugurated despite reports that "the army admits that stone-throwing among the thousands of children who wander Palestinian refu- gee camps and villages is almost always spontaneous and beyond the control of parents or adults."' More than half of the stone throwers were said to be under thirteen years of age; if caught, a large number must be released on bail because Israeli military law forbids jailing children below the age of twelve. o Punishment in the United States of parents and guardians for the acts of their children and wards has taken three major forms. The first centers on statutes outlawing a variegated and often ambiguous realm of acts labeled "contributing to delin- quency." The second focuses on civil liability under the gen- eral heading of "parental responsibility," and the third, the most recent development, uses statutes or ordinances to deal criminally- usually as misdemeanors-with what are defined as illegal parental actions or omissions. I. CONTRIBUTING TO DELINQUENCY STATUTES The offense of contributing to delinquency was first incor- porated in the 1903 Colorado juvenile court law, and now exists in forty-two American states and the District of Colum- bia."I Contributing statutes allow adults, including parents, to 9. Israel to Seize Property of Young Stone- Throwers'Parents,N.Y. Times, Dec. 22, 1989, at A3, col. 2. The article continues: ...[T]he military has tried to deter the children in the past by fining, arresting and jailing their mothers and fathers. In May 1988 the army began enforcing a law that said parents could be held responsible if they did not prevent their children from participating in street demonstrations.... But before a parent could pay a fine or serve a briefjail sentence for acts committed by one child, another son or daughter would be arrested for hurling rocks. Soon Palestinian parents were facing huge fines they could -not afford and the army was forced to jail people repeatedly. After a few months, the army quietly abandoned its policy of fining and arresting parents. ld at cols. 2-3. 10. Id. at col. 2. !1. See Garlock, Contributing to the Delinquency of Minors, in I ENCYCLOPEDIA OF CRIME AND JUSTICE 240 (S. Kadish ed. 1983). For 306 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 5 be dealt with in juvenile courts for behaviors that often are at best arguably related to juvenile delinquency, even loosely defined. In 1959, for instance, in State v. Gans, 2 the Ohio appellate court upheld the conviction of the adoptive parents of an eleven-year-old girl who had taken her from that state to West Virginia where, with their connivance in misrepresenting her age, she was married in what apparently was a legal cere- mony. The Ohio law not only allowed penalties to be imposed for actions "causing" but also for those "tending to cause" delinquency. The appellate court declared that encourage- ment to marriage constituted encouragement to truancy-a delinquent act-and it deemed the girl's situation particularly deplorable because she had been a good student. The mar- riage "would have strong propensities to render [her] incapa- ble of continuing her school attendance, with the probable result that she would ...be found a delinquent child because of truancy."'" This sophistry may have caused the court some passing unease, because it then ventured a further guess at what might happen if its prediction of truancy proved inaccu- rate. If the girl were to remain in school, the Ohio court declared, "the more successful her marriage would be the more it could tend to cause her 4to act so as to adversely affect the morals of her classmates."' Contributing to delinquency laws are explained as encom- passing "the broad purpose .. .to stamp out juvenile delin- quency at its roots."'" Given such a judicial benediction, appellate courts typically have echoed the guideline offered by the Pennsylvania appellate bench that "no court should be astute in finding reasons to relieve those who violate its provi- sions."' 6 In State v.